The NME has failed in its attempt to get Morrissey’s long-running libel action against them struck out. In a judgment given by Tugendhat J at the High Court on 26 October 2011 the magazine’s application was dismissed  EWHC 2738 (QB), with the Guardian reporting that the case will be heard next year. The singer told the newspaper that he will now “be able to use the very public forum of the high court in London to clear my name, loud and clear for all to hear.” The NME was similarly bullish, saying to the same paper that it welcomed the chance to bring the matter to an end.
The action concerns an article published in the NME at the beginning of December 2007. It was an interview with the singer which was featured on the NME’s front page under the headline “Morrissey Big Mouth Strikes Again”, under which appeared the quote “The gates of England are flooded. The country’s been thrown away” and, beneath it, the comment “Oh dear not again”.
The words complained of are both the quotes attributed to Morrissey by the NME, and the NME’s own account of the interview. The first and most serious meaning which Morrissey relies on is set out in the Particulars, namely that “Despite his protestations to the contrary, Mr Morrissey is a racist who insists on espousing shockingly extremist right wing views”. Morrissey also claimed aggravated damages and claimed for republications in the national press. The Defendants contended that the words were fair comment on a matter of public interest; in his Reply Morrissey added an allegation of malice.
The NME’s solicitors made a request for further information in April 2008, to which no answer was given until March of this year. After Morrissey’s solicitors promised to attend to the request, there was a gap in correspondence of 19 months. The delays were explained by reference to litigation between Morrissey and his former manager, Merck Mercuriadis, with whom the singer had fallen out in early 2008. Morrissey’s solicitors explained that not only had Mercuriadis been responsible for instructing them, but that he had also then become involved in a legal battle with the singer. Morrissey on his part had to complete an album and fulfil obligations to tour before getting the action going again late in 2009.
The application was based on the court’s power to strike out proceedings for abuse of process. The Defendants also contended that the action interfered with their Article 10 right to freedom of expression and their Article 6 right to a fair trial. They relied on three different legal bases for the application.
The first was found in Grovit v Doctor (unreported) CA, 38 October 1993, where Glidewell LJ said that the court can infer that there is no proper motive for a delay where the plaintiff gives no valid explanation for it. On this point the Defendant submitted that, after the initial delay in May 2008, Morrissey had no further intention of bringing the action to trial, as evidenced by the differing explanations offered for the delay, and the fact that his former manager was not a crucial witness. In response, the Claimant submitted that there was no reason to disbelieve that his dispute with his manager made pursuit of the claim impracticable. Tugendhat J held that it was not possible to disbelieve Morrissey’s explanations on the papers before him and that he could not make an inference that there was no intention to progress the action; to strike it out would have been a disproportionate sanction for the breach of the CPR.
The second basis for the application was the familiar Jameel v Dow Jones  QB 946 jurisdiction to stop a claim that doesn’t serve the legitimate purpose of protecting the claimant’s reputation. The Defendants submitted that there was no continuing damage which could be vindicated by the action, particularly given that Morrissey’s own rebuttals of the allegations are available online. The Claimant drew attention to the seriousness of the allegations and the extent of publication complained of, and the fact that the damage and general interest in Morrissey were ongoing. Vindication accordingly remained important. Tugendhat J accepted the distinctions between the instant case and Jameel, commenting on the significance of the NME in the music world in which Morrissey is so prominent.
The third basis was one outlined by Lord Diplock in Birkett v James  297, namely that delay risks the impossibility of a fair trial as it “is likely to cause or to have caused serious prejudice to the defendants”. The Defendants contended that the delay had resulted in loss of memory of the details of the events surrounding the publication of the article. The Claimant submitted that in all the issues in the case, the focus is likely to be on contemporaneous documents such as the article, the transcripts of the interviews, and the emails exchanged between the parties. The lapse of five years was not so long as to make a trial unfair, and some of the issues related to a much older dispute going back to 1992. While the judge accepted that it is wrong that those involved have had the allegation of malice hanging over them, he did not find that it is now no longer possible for there to be a fair trial.
The judge dismissed the application on the basis that the balance between the Defendants’ Article 10 right and Morrissey’s right to reputation required that the action be allowed to proceed. He suggested that the dispute might be susceptible to ADR, but that this should not lead to further delays.
Delay in pursuing a claim, and the extent to which that can be a basis for an application to strike out, were the key issues. The recent decision in Adelson v Anderson  EWHC 2497 (QB) (Inforrm comment here) showed that such an application can be effective where the reputational interests at stake are modified by the time taken to pursue the claim. By contrast, the judgment here demonstrates how, where there is a credible explanation for the delay, the prominence of the claimant and the publication concerned, and the serious nature of any allegations, all work against any use of the Jameel jurisdiction. It seems on the facts of this case to be one which is less appropriate for a claim brought by someone with a continuing existence in the public eye: the swirl of controversy which surrounds a figure such as Morrissey, who is not averse to using a massacre to comment on the value of vegetarianism (‘Morrissey likens Norway attacks to McDonalds and KFC’), can play a part in ensuring that a libel action is a legitimate use of the court’s time and resources.
The claim and the way it is pleaded are also instructive for journalists (and those who advise them) when they are trying to make a controversial story stand up. The Witness Statements largely concern the article’s transition from interview and transcript to the finished product, the editorial decisions that were taken in the run up to publication, and communications between Morrissey, his manager and the magazine in the aftermath of the encounter. Morrissey’s manager retained over 350 emails relating to the story. Journalists are always told to keep hold of their recordings of interviews, but this action makes clear that a publication’s scrupulous approach to all parts of the writing and editorial process could pay dividends if a contentious story results in litigation.
Gervase de Wilde is a student barrister and former journalist at the Daily Telegraph